Militant moderate, unwilling to concede any longer the terms of debate to the strident ideologues on the fringe. If you are a Democrat or a Republican, you're an ideologue. If you're a "moderate" who votes a nearly straight party-ticket, you're still an ideologue, but you at least have the decency to be ashamed of your ideology. ...and you're lying in the meantime.

Friday, December 23, 2005

Postcard From a Hellhole

Column background: I don't smoke, and dislike more or less intensely being around those who do. I know, rather, I have met, the principal characters involved here and bear them no particular personal ill will; the only animosity I bear them has to do with their profession, and then, because of circumstances, my animosity is tainted with gratitude in at least one instance.

I live in Madison County Illinois. The notorious Judicial Hellhole® you've heard so much about. I largely agree with that assessment. It is, for all practical purposes, accurate.

Madison County has the reputation – deserved – of having a courthouse that mistakes its purpose for being a transient shelter. If a down-on-his-luck litigant can manage to make it to Edwardsville IL by hook or by crook, he will be welcome in its courts.

Most courts in this nation follow the rules of legal jurisdiction: you actually need to live in the county in order to use its courts, or the person you're suing needs to live in the county. Or something. There has to be someone connected with the case – apart from the lawyers arguing it – who have some connection to the county.

Not so Madison County courts. "Oh, you've heard of Madison County? That's good enough. File your case with the Clerk, room 206." "You've seen the Collinsville Ketchup Bottle on a postcard? You qualify. Clerk, room 206." "You studied the Lincoln-Douglas debates? The most famous occurred in Alton, which is in Madison County ... Clerk, room 206." Madison County is the horseradish capitol of the world. Three-fourths of the horseradish on the planet is grown within a few miles of us. If you've ever had horseradish on your corned beef-on-rye, come on down and sue someone. The more the merrier. Room 206.

A few years ago a whole bunch of people who smoke and now feel stupid about it sued Phillip-Morris, claiming that they smoked "light" cigarettes which made them just as sick as "heavy" cigarettes would have made them, the cigarette maker knew it would, and calling the cigarettes "light" was deceptive advertising.

A couple of things happened here. Because cigarettes are smoked by people all over the country, all the lawyers would need to do was find someone in Madison County who smoked "light" cigarettes to join the lawsuit and voila! you've got a Madison County class-action suit. Then, because Madison County was starting to get negative publicity and the citizens of the county might react to such negative publicity by siding with defendants [like cigarette companies, or asbestos manufacturers] while on juries, the lawyers dropped the "health claims" from the class-action, leaving only the deceptive advertising claim; deceptive advertising doesn't get a jury trial.

So a case was heard in Madison County, in a courthouse not 3 miles from my house, in 2003, pitting a whole bunch of I'm-a-dumb-smokers against they're-the-meanies-who-sold-me-what-I-wanted. Honestly, I don't have an awful lot of sympathy for either party. If you smoke, you deserve it, whatever "it" happens to be. If you profit by giving "it" to others, and you've known about "it" for decades, then you deserve it, too.

The judge was Nicholas Byron. An old guy. He was the guy who was tagged to hear a complaint my ex-wife made against me when she wanted to eliminate all contact between me and my children. Her complaint? I had a horse, and horses can kill people. As if that wasn't bad enough, I had strung an electric fence to keep the horse in and coyotes out, and electric fences kill people too. To prove it, she came over one afternoon to touch the fence, got stung, started crying and declared that she didn't want her babies to feel that. Ergo, the fence could kill.

We replayed this in Byron’s courtroom one afternoon and he informed my ex-wife that he couldn't protect children from every pain or discomfort that they might ever run across. In short: go away and stop being petty. Despite Byron being a judge, I have a soft spot in my heart for him.

Three years later, Byron ruled that Phillip-Morris was guilty of deceptive advertising and owed everyone under the sun $10.1 billion. The cigarette scofflaw filed an appeal. This required that they put up cash and notes with the county, from which the county is entitled to reap a share of the interest until final ruling. The cash and notes handed to Madison County by Phillip-Morris exceeded six billion dollars. Madison County has been getting around $2 million in interest every few months since.

...and the appeal went forward. The smokers' argument was, "Hey! They're lying about "light" cigarettes being less dangerous, even though they never said that." The Phillip-Morris position was, "Hey! If the federal government creates the rules by which we advertise our products, and we followed their rules, how can we be guilty of breaking the rules?" Frankly, they have an excellent point.

The judge who's yammering about it is the county's Chief Judge, Edward Ferguson. When I was doing jury duty earlier this year [for an asbestos lawsuit], he was the pleasant, affable, "large, santa-ish gentleman" who came to give us a pep talk on our first day. He is a likable fellow in person, and one you'd appreciate having as an uncle or grandfather, but he yammers periodically in the press about Madison County’s reputation, complaining about how it is all undeserved. As a judge, a role in which I do not appreciate him, he is a whiner and a rationalizer.

His comments on the Phillip-Morris reversal were that it just proves that "the process works".

It's flabbergasting. It's cynicism at it's finest. In a crass way, it does prove the process works. A contrived lawsuit, shoehorned into a forum-shopped courthouse, politically manipulated into financial windfall for everyone but the corporate bad-guy du jour gets reversed so that the right answer comes out in the end. Yes. Congratulations. Theoretical success.

In practice what we find is that stupid plaintiffs who do stupid things and then want to blame someone else for it get their hopes up and their pockets picked; a corporation which does stupid things deliberately but legally follows the rules while doing it has to spend millions of dollars to demonstrate what any low-level clerk in the Federal Trade Commission already knows; and only the lawyers and the judges make money... if that's the process working, then the process needs a visit from Guido and Rocco to do a little breaking.

Alright, technically, the judges don't make money from the process "working" like this. The county does. And the county politicians get to spend the money that the judges "earn" by certifying dubious class-actions for trial, awarding strained-in-law-and-logic financial rulings which require huge cash and note appeal bonds from which the county derives a substantial interest income – around $10 million of a county budget of slightly over $100 million. And the county politicians then recommend which judges should be retained. Everyone’s back gets scratched eventually.

Yep, the process works, alright. As long as there's some higher court which can come in behind Madison County and undo whatever stupid things Madison County judges do, the process works great.

Once again, my courthouse got caught doing what it does worst: dispense justice. Byron has it right: when they catch you being a lousy judge, keep quiet. Judge Santa needs to follow suit. We’re embarrassed enough already without him making it worse.